By Dr. Ihsan Al-Khatib, Esq.
The post 9/11 environment has created a number of challenges for Arab and Muslim Americans. In an environment rife with hate and demonization, the issue of Shariah law arose. Right wing and Zionist individuals and organizations made Shariah law an issue in American politics and in this year’s presidential elections. The loudest voices in the media have been those of the ignorant and the bigoted. To shed light on this matter, the Forum and Link sought out an authority, if not the authority, on Islamic issues in American courts, attorney Abed Awad, an adjunct law professor at Rutgers law school in New Jersey and founder of the renowned blog www.shariainamerica.com which digests American cases involving Islamic law.
Tell me about yourself, what areas of law do you practice?
I am primarily a litigator. I handle complex matrimonial matters and commercial matters. In addition, I provide services as an expert in Islamic law and the laws of Arab countries.
You are recognized as an authority on the issue of Islamic law in US courts, how did you get into this area of practice?
I have handled as an expert, or consultant or attorney more than 100 cases with a component of Islamic law or the laws of the Middle East in the past 11 years. Prior to going to law school, I spent three years in graduate school in the US and in England. I earned a Certification in Comparative Law with an emphasis in Islamic law and a Masters in Islamic Studies with an emphasis on hadith, a primary source of sharia. With native fluency in Arabic and my graduate work coupled with my training as an American attorney, I developed a unique expertise in Islamic law in American courts. I am on the adjunct faculties of Rutgers law school, Pace law school and Seton Hall law school, where I teach several courses: Matrimonial Litigation; Islamic Law; Islamic Banking and Finance.
Can you explain Shariah law to our readers?
Sharia is more than simply “law” in the prescriptive sense. It is also the methodology through which a jurist engages the foundational religious texts (Quran and Sunna) to ascertain divine will. As a jurist-made law, the outcome of this process of ascertaining divine will is called fiqh (positive law), which is the moral and legal anchor of a Muslim’s total existence. Everything from the way we eat, to how we treat animal and protect our environment, to the way we conduct commercial trade, the Sharia governs every aspect of an observant Muslim’s moral life.
How is Shariah law different from American law?
We need to keep in mind that the American system is a modern nation state legal system, which is a product of the post- Enlightenment revolution and transformations of Western societies. The Sharia is a pre-Enlightenment legal system that served Muslim communities for 1300 years efficiently and effectively. The objective social, political and economic historical context for each system must be considered to better understand their similarities and differences. I don’t think you have enough space in this interview to do this topic justice. However, the lively debates that are raging in the Arab world post the Arab Spring about the role of sharia in the modern nation state are fascinating. The modern manifestations of sharia are ongoing and evolving. Be that as it may, the American system is different in that the anchor for the Sharia is moral, while the anchor in the modern Western legal is the separation between the moral and the legal. In the end, both systems strive to discover the truth and dispense justice. Each system, however, tries to reach this ultimate objective via different path.
Some say, with naïve or with evil intention, let’s outright ban Sharia in the US? What do you think about that?
Now as to the relevance of Sharia in the United States – in addition to its relevance in the daily lives and practices of Muslim Americans, American courts are required to regularly interpret and apply foreign law — including Sharia — to everything from the recognition of foreign divorces, and custody decrees to the validity of marriages, the enforcement of money judgments, probating an Islamic will and the damages element in a commercial dispute and tort cases. Sharia is relevant in a U.S. court either as a foreign law or as a source of information to understand the expectations of the parties in a dispute or to clarify an ambiguity in a dispute. One thing, however, is very clear on the use of any foreign law by any U.S. court in any circumstances, and that is that court consideration of foreign law is subject to the strictures of our Constitution and public policy. To learn more about Islamic law in American courts with the latest developments, please visit our blog at www.shariainamerica.com which digests American cases involving Islamic law.
As to Mahr provisions in Islamic marriage contracts, how do courts deal with Mahr, do they enforce it?
It depends. The way a claimant describes the Mahr provision, or Muslim Marriage Contract – as a prenuptial agreement or as a simple contract – could have a direct impact on the likelihood of its enforcement. If you round up the majority of reported American cases across the country, you will notice some trends. The cases fall into one of two categories: courts treating the Muslim marriage contract either as an Islamic prenuptial agreement or as a simple contract between consenting adults. While several courts have enforced the Muslim Marriage Contract as a prenuptial agreement, more and more courts are moving against enforcement under the prenuptial agreement theory. The simple contract theory is gaining more ground.
Some have resorted to a promissory note for the delayed payment of the Mahr to ensure payment, would that work?
That is a very creative approach. I have not seen it in ligation yet.
The Greater Detroit area has a high concentration of Muslim Americans, how have American courts dealt with Muslim issues?
It depends on the specific court and on the particular issue. For example, some courts have enforced the Marriage Contracts while others have refused to enforce it. Recently, in Hammoud v. Hammoud, the Michigan Appellate Court discussed the authority of the trial court to direct a husband to grant his wife a Muslim divorce. In Hammoud, the trial court awarded alimony to a wife because the husband refused to grant her a Muslim divorce. The court reasoned that without a religious divorce, the wife would not be able to remarry; therefore, the wife would continue to be economically dependent on the husband. In other words, if the husband granted the religious divorce, the wife would not receive alimony. The appellate court disagreed, stating that the trial court did not have the authority compel the husband to grant a religious divorce nor did the trial court have the authority to use an alimony award as leverage to secure the religious divorce. So as you can see, sharia in American courts is lively, dynamic and evolving. We launched a blog ShariaInAmerica.com where you can continue to explore how courts around the country have dealt with Muslim issues.
There is a campaign to outlaw Shariah law in the United States, what do you think of this campaign? How would it affect the rights of American citizens?
Other than the fact that such bans are unconstitutional – the 10th Circuit Federal Court of Appeal recently held that the Oklahoma ban on sharia would likely violate the First Amendment — they are a monumental waste of time. Our judges are equipped with the constitutional framework to refuse to recognize a foreign law or take into account religious law. In the end, our Constitution is the law of the land. The only explanation is that they appear to be driven by an agenda infused with hate, ignorance and Islamophobia intent on dehumanizing an entire religious community. The fringe right- wing minority in our country is trying to turn this into a national 2012 election issue. Are you with the sharia or with the U.S. Constitution? It is absurd.
~Originally published in The Forum and Link: A Contemporary Journal Celebrating Arab America